Il Report del Committee on the Environment, Agriculture and Local and Regional Affairs dell’Assemblea Parlamentare riporta come “One must respect the precautionary principle …; waiting for high levels of scientific and clinical proof can lead to very high health and economic costs“.

Il Consiglio d’Europa ribadì come:“The EU Commission and the EEA sees the precautionary principle as central to public policymaking where there is scientific uncertainty and high health, environmental and economic costs in acting, or not acting, when faced with conflicting evidence of potentially serious harm”, ripetendo quando detto dall’Assemblea Parlamentare: “Waiting for high levels of proof before taking action to prevent well known risks can lead to very high health and economic costs, as we have seen with asbestos, leaded petrol and smoking”.

This Post is a brief presentation of Epis’ book:The Meaning of Rule of Law.

This book reports studies that the writer did at the University of Cambridge in 2005/2006.

Nevertheless, this Post is useful for an understanting of: “what” the Principium of Rule of Law is; and “why” I affirmed that the European Union acted sometimes in violation of the principium of Rule of Law, looking a “new form” of Ancien Regime.

Even though the writer believes that:
1) a corpus of legal values should be written inside each Constitution;
2) and Judges, Lawyers and People, have the duty to defend those values against the tendency of the Power to go beyond them; …
… the study affirms that:
1) on one hand, the principium of Rule of Law (and/or Supremacy of Law) does not include a corpus of legal principles (and/or values) inside itself, as somebody affirmed;
2) on the other hand, the principium of Supremacy of Law means a more important legal value: the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution, when Power believed to be above the Law.

It happened, exempli gratia, in France during the Ancien Regime.

Sovereigns, Nobles and whoever had some kind of Power, believed to be above the Law. They were used to act above Law.

Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principiumof Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law.

Sovereigns, Nobles, Bureaucrats, Banks and Financial Powers, are all under the Law.

In other words, they have to comply with the Law. If they do not, they are an Arbitrary Power.

The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power.

As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems.

The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions.

For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancien Regime). So, Varoufakis asked for a legal advice.

The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants! This is as the Euro-group does not exist for the Law!!

Hence, they argued: the Euro-group is above the Law!!!!!

In other words, the European Union answered like the King of France during the Ancien Regime.

But, if the Euro-group does not exist, the Euro-group is not above the Law.

Actually, all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law.

On the contrary, the European Union is a New Ancien Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981).

Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, people have forgotten the real meaning of Supremacy of Law.

Vi ricordate cosa J. R. R. Tolkien fece dire a Galadriel circa il suo Specchio: “Remember that the Mirror shows many things, and not all have yet come to pass. Some never come to be, unless those that behold the visions turn aside from their path to prevent them“.

The Book in PDF with Index, Bibliography, etc … is available in the page LAW & CRIMINOLOGY.

ABSTRACT

Although this study presents and elaborates the philosophy of Nietzsche about Rule of Law and Democracy, it is an analysis of the Simmonds’ Legal Theory. Simmonds was Readerof Jurisprudence at the University of Cambridge in 2005/2006. Right at that time, he developed and published an article, Law as a Moral Archetype, where he presented (for the first time) “his” Legal Theory. This study reports one the first criticisms, which were done, about “his” Legal Theory as it was published and lectured at that time.

It is argued that Simmonds’ Legal Theory is not original at all. Simmonds took previous ideas of other philosophers (such as: Plato; Saint Augustine; Ockham; and the Italian Ardigò) to elaborate a “different theory” from Finnis’ Legal Theory, which (on the contrary) took a lot from Saint Aquinas. But, Simmonds did not archive a good result, as he “corrupted” the former philosophical ideas to something that (at the end): sounded “weird” and “discriminatory”; leaded to totalitarian and intolerant views.

Furthermore, this study presents the Epis’ Legal Theory (as it was formulated at that time): Law as a Social Prototype.

INTRODUCTION

Truth, Nihilism and the “empiricism” of Nietzsche

According to Vattimo G. (1974; 1986; 1988; 1992), Nietzsche prepared the groundwork for the Post-Modernism. This is supported by the strong relationship between the Nietzsche’s Nihilism and the Post-Modernism’s view. Indeed, Nietzsche was “the prime theorist of nihilism in modernity … (and) … also one of the prime precursors of postmodern theory in the philosophical tradition. This means, then, that Nietzsche’s thought contains large elements of what—in retrospect—may be called “postmodern”. It also suggests that to a certain extent his theory of modernity may in fact be prophetic of postmodernity” (Woodward A. 2002).

Even if I disagree with Vattimo G. (1986; 1988; 1992) and Woodward A. (2002), this study starts analysing Nietzsche’s Nihilism.

Nietzsche’s Nihilism is the logical answer at any attempt (made by Humanity) to investigate the foundation of Truth, Values and Life’s meaning, inside metaphysical realms inhabited by Gods and Idols, instead of the physical and empirical one. Nietzsche explained this, using the paradigm of Christian Morality.

But, Nietzsche’s philosophy is not a Discourse pro or contraeithermetaphysicsorphysics in themselves. Nietzsche’s philosophy does not want analysing the different theories of knowledge for supporting one of them, instead of another one. Simply, Nietzsche wanted to put the individual at the centre of his philosophy. He wanted to suggest a change of prospective. According to Nietzsche, the singular individuals are the source of their own Truth, their own Values and their own Life-meaning.

Indeed, all the time human beings attempt to look for an answer outside them(selves), they fall into nihilism. There is NOT any empirical reality outside the individual experience. The empiricism of Nietzsche is not Materialism and/or Reductionism (against any metaphysical reality in itself). It is not also scientism. But, the empiricism of Nietzsche is an individual empiricism for the reasons that are clarified infra (below).

The only EMPIRICAL REALITY is the INDIVIDUAL EXPERIENCE

After Nihilism proved that: noabsolute Truth exists; all the different points of view have the same epistemic value and dignity; noCertainty is real; etc …; … individuals found themselves in front of a choice. On one hand, they could choose to believe in, and to live for, their own Truth (that comes from their own living experiences). On the other hand, they can choose to “believe” in, and to serve, the point of view of someone else.

Knowledge and Power

Nietzsche would have agreed with Foucault that Power and Knowledge are the two faces of the same coin. The society, indeed, is nothing more than a relationship of power among people. People are divided in two main groups: Masters and Slaves. The form (which those two groups and their bond take) changes: from Time to Time; from Culture to Culture; from Legal System to Legal System. But, at the end, the substance is always the same. Few persons lead; the majority follows.

Knowledge, Ethics and Education, are functional means for this kind of hierarchical structure. As Power cannot employ brutal physical force to make people serve its own interests in the modern societies, the role of creeds, beliefs and propaganda, is dramatically increased.

Indeed, beliefs have become the new form of “slavery’s chains”. They are used by Power to make people serve its own interests. But, beliefs have nothing to do with Truth. Simply, to believe is to have faith insomething like a dogma. Persons do not have any knowledge about their beliefs, but they are certain ofsomething as someone else told it!!!! In other words, people accept as true, rely on, anything that is stated and supported by Authority, Social Pressure and Groupthink. These forces make people live and believe in a Hyper-Reality (which they build for their own aims), but Hyper-Reality is NOT Reality. Hyper-Realty is a Realm of illusions and lies. People have faith in those beliefs (and act in compliance of them) as a sheep follows the flock!!!!. But faith, … it does not matter in / for What (Religion; Science; State; etc…) is always been one of the worst mean to archive Knowledge. This is Nietzsche’s message.

Nowadays, the framework of Weick’s studies about sensemaking and enactment could be operatively used to explain as Power uses and misuses beliefs to pursue its own aims. They should not be limited for approaching only the working contexts inside the Companies. Actually, they are very useful for analyzing the general social dynamics.

From Knowledge to Nihilism

As knowledge has served and has been serving Power and its interests, any investigation on beliefs’ foundations turns to be untrue.

Gods and Idols are used to found most beliefs as they cannot be founded anywhere else. Moreover, God was (in a retrospective way) the first Global Panopticon!! As Power could not control people 24 hours per day, Power makes people believe that God can. So, people complied with Power’s Will, fearing the punishment of God. In other words, God was employed by Power like a Panopticon’s gaoler!!!! God’s job was: to watch everyone 24 hours per day; to punish those people who disobey or infringe Authority’s norms. But, a God reduced to be a Panopticon’s gaoler is not anymore God. Can you believe in an omnipotent Being, who created the entire universe to make all His Creation be a Panopticon? Can you believe in a God who reduced Himself to be a Panopticon’s Gaoler and/or a Prison Director?!?!?!?

No, it is not believable.

“I conjure you, my brethren, remain true to the earth and believe not those who speak onto you of hopes beyond the compass of the earth! Poisoners are they, whether they know it or not”

Nietzsche, Thus Spake Zarathustra, Prologue, III.

Why are Gods and Idols used to found Truth and Values?

Surely has God been a good mean of Social Control.

Yet, God has been and is a way to exit from the Agrippa’s trilemma (also called: Munchhausen trilemma).

The Agrippa’s trilemma is an Epistemological Argument that goes back to Ancient Greek Skepticism. In the modern time, Hans Albert has re-formulated it. According to Albert, the Munchhausen trilemma is able to prove the impossibility to found and to justify any truth and/or value with any existingmethod (deductive; inductive; causal; transcendental; logical; etc …). The trilemma proves the impossibility to found any truth. Any attempt, indeed, falls into one of these three cases:

regressive argumentad infinitum or progress ad infinitum. Each proof requires a further proofad infinitum. This argumentum: both, is not practicable; and, does not provide any certain foundation;

vicious circle and/or circular argument (known in scholasticism as diallelus). The belief is based on circularity (a logical circle in the deduction). At a certain stage of the chain of arguments, a proof needs for its own foundation a previous “proof”, which needs for its own foundation the subsequent proof!! In other words, the latter is based on the former; the former on the latter. Exempli gratia, A is based on B, B is based on C, C is based on D. But, D is based on A. This is a circle. It does not lead to: both, any certain foundation; and, any final proof;

break of searching. At a certain point, people get tired to look for proofs and evidences of their beliefs. So, they end their researches at some stages. They create an assumption. An assumption is nothing more than a hypothesis that is not proved. Yet, they pretend those assumptions to be self–evident (axiomatic argument)!! But, this is nothing more than cheating. According to Albert, even if an axiomatic argument can appear “reasonable” to lay people, it is nothing more than a random suspension of the principle of sufficient reason. It does not lead to any certain proof. It leads only to: both, Dogmas; and, ipse dixit!

So, at the end, Truth and Values cannot be found with any method. Thus, God was employed like “break of searching”. God was able to link together: the axiomatic argument with the Authority argument.

But, God was not the source of the beliefs that were founded on Him!

As we told supra (above), those truths and values were “all too human things”.

“Where you see ideal thing, I see – human, alas all too human things”

Friedrich W. Nietzsche, Human All Too Human

Nietzsche used the Catholic religion like paradigm. Christian beliefs, indeed, have changed continually from Time to Time to serve the Power’s interests. Those changes were not a change of mind of God, but they were a change in the historical interests of the pro temporePower.

According to Weick’s framework, Power uses beliefs to make people work in compliance with its aims. The beliefs have been used and have been in the progress of being used by Power like human software. To make a computer do something, you need software. In the same way, to make people do something, you need to make them believe something.

The paradigm of God works also for idols.

Science, Psychology, Technology, Economics, Finance, PoliticalIdeologies, etc…, could be idols. They are idols each time they demand faith. They are idols each time people have faith in them. They are idols each time they ask for homologation.

There is no difference in having faith in them and/or in God. There is no difference for people to homologate themselves in God’s Will and/or in Psychological / economical / political / etc … / constructs. All of them are human creations.

The social mechanisms behind faith and homologation are the same. Both of them, soon or later, lead to intolerance, discrimination, fanaticism, violence, and all theworst actions that Humanity has done in the History.

As Dominican monks were able to commit the most ferociousatrocities “in the name of” God, due the same blind faith (nowadays) scientists, psychologists, statesmen, financiers, …, can commit any kind of atrocity “in the name of” their new Idols. Instead of a TheocraticTyranny (with its Holly Inquisition), these idols will found a Technocratic Tyranny (with its Profane Inquisition[1]). But, both of them are the same. Both of them demand homologation, faith, submission to the Power’s will. Sciences, indeed, is just a Power’s matter. The same beliefs and truths, which are part of the Scientific Paradigm, are consequences of the relationships of power among the members of that ScientificCommunity (Lyotard). Changes in the relationships of power become changes in the beliefs and in what is assumed to be true in that Paradigm, …, and vice versa. Power and Knowledge are the same, as we told supra (above).

Into Nihilism. The Choice: are You a Master or a Slave?

As Truth cannot be reached by any Science, any Religion, any Discipline, and any Methodology; …

As Truth and Justice, at the end, are nothing more than the interest of the most Powerful a là Trasimacus; …

As Power is, in its very Nature, the force to impose one point of view onto any others; …

… People find themselves into Nihilism.

So, the question is: is it possible to survive into Nihilism?

According to Nietzsche, it is.

Nihilism states only that it is not possible to found any Truth and/or Value in the external World. Each person should become the source of his/her own Truth and Values. Some people are able; other people are not. The latter prefer to follow the truth and values of other people instead of theirs own.

In other words, Nihilism marks the boundary between Masters and Slaves. Masters are those people who are able to trust themselves and to determinate their own Truth and Values.

On the contrary, slaves need to “trust” and to “serve” the point of view of someone else.

So, Nihilism puts the human beings in front of a choice.

Nihilism asks: “Are you a Master or a Slave?”

The answer depends from the individual ability to stand alone into Nihilism or not.

A Master is able to: stand-alone into Nihilism; go against the flow; be different from the flock; be creator of his own universe, truth, values, and life-meaning.

A Slave is not able. He/she prefers acting like a sheep and/or lemming. He/she needs: to follow uncritically the flock; to homologateand to uniform him/herself to the group to feel “normal”; to believe that who acts differently from the group is crazy. Psychopathology is the creed of the slaves. Psychopathology is a creation of theslaves’ thought. They demand norms and models. They need to homologate themselves to those norms and models. To be a flock of sheep, they need to be uniformed to those norms and models. Thus, they cannot tolerate anything that is different from their norms and models. Everything is different, indeed, must: either, be eliminated; or, be forced to conform to their norms and models. Everything is different from them, it is a threat and menace to: the flock; the Only-Allowed-Thought. As they think themselves normal, sane, right, …, everything is different must be abnormal, insane, crazy. As it/he/she is insane, they feel themselves to be justified, to force it/he/she to homologate to the flock. So, psychopathology has become the New Profane Inquisition. Psychopathology has become the justification and the instrument to make people: uniform to the flock; be uncritical servants of the Power and its Only-Allowed-Thought. Psychopathology has become a “mean” to create a new form of slavery. To be “normal” is to comply with, to believe in, the Only-Allowed-Thought.

So, which will your answer be, when you find yourself in front of Nihilism?

From Nihilism to Individual Empiricism: the implosion of the dichotomy between Nietzsche’s Philosophy and Christian Religion!!

Once human beings find themselves alone into Nihilism, they can only make one of the two above choices.

People, who are overwhelmed by fear, will look for a shelter into the point of view of someone else. They will not be able to live without absolute certainties; so, they will ask for someone, who is able to give them dogmas. They will look for an Only-Allowed-Thought at which uniform themselves. On the contrary, individuals, who are able to stand alone into Nihilism, will find a new beginning. Paradoxically, although Nietzsche’s speech seemed to be against the Christian God, they discover themselves “God’s sons”!!!!

According to the Bible, God made human beings look like Him. God was the Creator. He was the first being able to stand alone into Nihilism. Hence, his sons should be creators; his sons should be able to stand alone into Nihilism; … as He did at the beginning of the Time.

The superman of Nietzsche is this. According to Thus Spake Zarathustra, he is able to transmute himself into a Child (after having been a camel and a lion). The Child is the final step of his evolution. The Child is a creator. The Child is able to stand alone into Nihilism without fearing it.

But, whereas God was the creator of the entire Universe, the child is the creator of his own universe.

God was not a lemming. Could His Sons be lemmings?

God was not a sheep. Could His sons be uncritically followers of the flock?!?!

Thus, I disagree:

both, with Woodward A. (2002), who describes Nietzsche like a nihilist who simply attempts to destroy any value to lead to a complete nihilism;

and, with Vattimo (1998), who thinks that it is not possible to go over Nihilism (exempli gratia, searching a new foundation for Truth and Values), but it is possible only to change our attitude to it. In other words, Vattimo suggests accepting to live in a meaningless World.

Nietzsche does not abandon the idea of Truth. He suggests to change prospective.

“The sense of truth. – I approve of any form of scepticism to which I can replay, “Let’s try it!” But I want to hear nothing more about all the things and questions that don’t admit of experiment. This is the limit of my “sense of truth”; for there, courage has lost its right” (Gay Science, 51).

From Man to Super-Man

The individuals, who are able to pass through the three stages (camel; lion; Child), arrive to transmute themselves from men to super-men.

This means two things. On one hand, people discover themselves sons of God. On the other hand, society cannot long to be a flock of sheep.

Society has also to transmute itself from a flock of sheep to group of freeIndividuals, who are able to co-exist and to collaborate in theirown (very strong) differences.

Only this kind of society will be a true Democracy.

Indeed, no democracy (at all) can exist among flocks of sheep as homologation is the worst kind of Tyranny.

It does not matter the form and/or the name that has been taken by tyranny. It does not matter the reason “in the name of” which, Homologation is demanded.

Without a doubt, flocks of sheep are always dominated by a Totalitarian Regime as they demand homologation. The only difference among these Regimes is about: the degree of how tyranny is overt or covert; and, the concrete historical / cultural form that has been taken by the Regime itself.

As we are going to explain in Part III, Democracy can exist only, and only if, there are free Individuals, who are not homologated among them.

[1]Psychopathology is: a new Malleolus Maleficarum (Epis, 2011/2015); the form that has been taken and has been in the progress of being taken by the Profane Inquisition. Indeed, it is used to “attack” whoever acts and/or believes differently from the flock. It is used to commit and to justify any modern atrocity “in the name of”: Homologation; and, Only-Allowed-Thought. Most of the times, it is used to (even) create the behaviours and situations that are used to justify (later) its use / intervention. It is an instrument able to trick the Legal System (with all its Rights and Liberties).

… that “marvellous University” where the “RightVery Most”finest minds are (!!!!) …,

… there was a Reader in Jurisprudence who thought to have discovered the “hot water” in 2005!!

He was a very lovely and enjoyable person. Indeed, rarely have I found (in the entirely World) so pleasant lectures. Each time I demonstrated the inconsistency and wrongfulness of one of his theories and/or teachings, he was used to reply that those theories/teachings were thought by one of the Finest Cambridge Mind!! For most people, a sufficient reason to prove the rightness of those theories / teachings!! Of course, populaces agreed with him, clapping at those “self-evident” words.

On the contrary, I was used to laugh a lot. I found so hilarious his sense of humour that I laughed so much that I wept for Happiness!! His lectures were so entertaining and mirthful that they were a blessing break from the usual pedant, doctrinaire and hollow, vain Cambridge speech.

Simmonds (2005a; 2005b) claimed to have archived a Legal Theory able to support “an understanding of law as a substantive moral idea” versus “an understanding of the law as a morally neutral instrument, serviceable for wicked purposes as well as good”. But, his theory is: both, wrong; and, NOT original at all. It was copied from Plato and the Italian Ardigò. Actually, the theories of Plato and Ardigò were far, … far… , far better than Simmonds’ theory. The latter was a bad copy, which “corrupted” the good ideas of the formers.

Simmonds believed to have overcome the conflictbetweenRule of Lawand the “mundane view of law” with his Legal Theory: Law as a Moral Archetype. According to Simmonds, Law is an “approximation to an intellectual archetype”. His theory is based on two assumptions:

the firstpostulate is: Law is “structured by archetype”;

the secondpostulate is: the “archetype is an intrinsically moral idea”.

But, both his postulates / assumptions are wrong!!

Moreover, although Simmonds attempts to deny that his archetype lives in a metaphysical realm, he fails to prove this.

At a first look, Simmonds’ theory seems to be a mere reformulation of the two platonic worlds. The strong affinity between Simmonds and Plato is supported by the example of archetype, he used: the concept of triangle.

Simmonds rejected the empirical definition (which had been made by Euclid[1]) as he preferred an understanding of triangle in term of: degrees of approximation between a geometrical formand an ideal archetype of triangle. Does it sound like Plato (!!), does it not?

Indeed, he wrote: “So triangles do not constitute triangles by satisfying a set of criteria” (!) “but by approximating to an ideal archetype; and not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a)[2].

There is only one difference between Plato and Simmonds. For the former, there is not prejudice and discrimination among triangles. Triangles are equally triangles, even if they can have different forms and characteristics. Equilateral triangles, isosceles triangles, scalene triangles, right triangles, obtuse triangles, acute triangles are all equally triangles for a Platonic idea of triangle. But, for Simmonds, they are notequal, since they reflect a different degree of approximation to the ideal archetype of triangle!!

But, are we sure that exist only an idealarchetype of triangle?!?!

Why is the existence of six different ideal archetypes of triangle not possible?!?!

Is it possible that those sixdifferent archetypes of triangle come from a common meta-archetype of triangle?!?!

And, if so it is …, are we sure that the function / role / nature of this meta-archetype of triangle is to discriminate among triangles?!?!

No, we are not. Simmonds was hugely wrong.

Law of Hume versus Simmonds’ Moral Archetype

According to the Law of Hume, this meta-archetype belongs to a Descriptive Realm. It does not belong to any Normative Realm. So, it cannot be used to discriminate among triangles. It can only say if A is: either, a triangle; or, not a triangle. In other words, it defines the entities that belong to the set of triangles. If we apply it to Law, it will be the same. The Archetype will only say if something belongs, or not, to Law.

That is all, Folks.

But Simmonds makes his archetype say something of very different.

According to Simmonds, not all triangles are equally triangles but “they are triangles to the degree to which they approach the ideal”.

In other words, Simmonds violated the Law of Hume. He passed from an entity, which belongs to the Descriptive Realm, to an entity, which belongs to a Normative Realm. He confused between these two dimensions.

Simmonds’ archetype is not an archetype. It is a normative choice that has been masked behind a descriptive form.

For this reason, he arrived to state that: “not all triangle are equally triangles: they are triangles to the degree to which they approach the ideal”.

All the Legal Theory of Simmonds is based on this huge mistake. He confound between the Descriptive Realm and the Normative Realm.

An entity can only belong to one of these two Realms. An entity cannot pass from one of them to another one. So, Simmonds’Legal Theory implodes in itself. On one hand, it was the result of a verywrong reasoning (which was done by one of the “finest Cambridge mind”). Simmonds misused philosophical ideaswithout: having awareness of them and their implications; knowing what he was doing!! On the other hand, if he knew what he was doing, he was willingly cheating. He used one of the most antique logical fallacies.

As a result (it does not matter how or why), he created a wrong and dangerous theory able to “prostituting” itself to support any intolerant and totalitarian Regime, which wants to impose its own ideal onto any other one else!!

Ideals, indeed, change: from Culture to Culture; from Time to Time; from Person to Person; etc… .

The Holy Inquisition, on the contrary, would have found very interesting the Legal Theory of Simmonds!!

Simmonds Background

Where does Simmonds’ Legal Theory come from?

The University of Oxford and the University of Cambridge have a long tradition of rivalry. Thus, when Oxford says A, Cambridge says Z.

It makes quite easy their job!!

As Finnis (Oxford) had taken a lot from Saint Aquinas (Aristotelism), Simmonds (Cambridge) was forced to take a lot from: Saint Augustine (Platonism); and Ockham, who opposed his teaching to those of Aquinas.

So, Finnis and Simmonds played this historical endless recursive gamebetween these two Universities and these two opposite philosophicalpoints of view.

But, Simmonds “corrupted” the idealof Plato with Ockham’s philosophy.

From Saint Augustine, Simmonds took: the strong dualism; and, the idea of Law as a Moral Archetype. The imperfect human beings tend endless to, without reaching it, a Moral Archetype.

From Plato, Simmonds took: both, the Theory of Form (Phaedo); and, the Doctrine of Love. From the former, Simmonds took his firstpostulate[3]. As nothing in the World is more than a shadow (Plato, Cavern’s Myth), Law comes from an immaterial ideal that is neitherphysicalnormental. According to Plato, this ideal comes from nowhere in the space-time, as it lives in a Metaphysical World (the World of Ideas). From the Doctrine of Love, Simmonds took the dynamical relationship between Law and its Ideal.

But, neither Plato nor Augustine stated what Simmonds affirmed later: “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a).

Simmonds took this idea from Ockham’s thought. Ockham fought Aquinas’ teachings. As Simmonds wanted to fight Finnis’ theory, he: either, had to pick up from Ockham; or, had to create something new.

Simmonds picked up from Ockham (… it was far easier…).

According to Ockham, Moral and Legal norms cannot be found with reason (and/or introspectiona là Finnis and Saint Aquinas). Behavioursare good only if they are conformed to God’s commands. There is nointrinsic reason in them. Good and Bad are only the outcome of arbitrary norms / commands of God. So, even the wickedest things can be the absolute Good if God commands them. Bad is only to disobey to (to not comply with) God’s norms and/or commands.

Now, Simmonds does not speak about God, as God has never ever commanded anything. Moreover, nowadays, God is an unfashionableargument among Scholars. On the contrary, the Moral Archetype is based on Power’s Will. As there is not any intrinsic reason of what Good is (Ockham), Simmonds’ Moral Archetype becomes an arbitrary normative entity used by Power to make triangles homologate to its Will. So, Simmonds’ Moral Archetype discriminates among triangles. This is the reason why not all triangles are equally triangles. They are “triangle” due the degree to which they comply with Power’s Will.

At the end, the Legal Theory of Simmonds has opened the doors to any Totalitarian Regime behind vacuum, in appearance agreeable, void words.

Nietzsche versus Simmonds

“Where you see ideal thing, I see – human, alas all too human things”

Friedrich W. Nietzsche, Human All Too Human

Both Nietzsche and I agree that different triangles have different forms and characteristics[4] as different Human Beings have different: Culture; Race; Ethnicity; Nationality; Ideas; Beliefs; Experiences; etc… . BUT, neither Nietzsche nor I agree with Simmonds when he says that “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” of triangle.

This is for the reasons I have explained supra (above) et infra (below).

Simmonds does not have any clear idea about the difference: between EpistemologyandEthics; betweenDescriptive RealmandNormative Realm. Simmonds’ Legal Theory confounds the Nature of Law with the Political Domain of a Legal System.

On the contrary, when I speak about Law as a Social Prototype, I speak about empirical things. I speak about a DescriptiveTheory that explains the Natureof Law without: both/either, entering inside the normative contents; and/or, judging among triangles. I keep a distinction: from EpistemologytoEthics; from the Descriptive Realmto the Normative Realm.

What is a Social Prototype?

A Social Prototype is exactly the opposite of the Simmonds’ Moral Archetype. To understand the prototype, you have to change the perspective. You cannot start from any metaphysical Realm, but you have to start from the empirical and physical Realm.

Simmonds, indeed, made the same mistake of Raz (Epis L., 2015). As he could not found “his” theory in the empirical facts, he founded it entirely onto ontology and metaphysics. It was a way to deny the reality of facts. But, Law does not come from any metaphysical Realm!! On the contrary, Law comes from the historical living experience of a society.

As this writing is to say, Law as a Social Prototype is the final evolution of the Ardigò’s Social Ideal. On the contrary, Simmonds Law as a Moral Archetype is the last regression of the Ardigò’s theoryfrom a Positive Stageto a Metaphysical Stage.

According to Ardigò (1901), every society creates its own Social Ideal (Idealità Sociale). The Social Ideal does not come from any metaphysical Realm. It is the natural outcome that is caused by the inborn and innate Law of the Nature. They are “written” inside: both, the Social Organism; and, the Human Beings.

The Social Ideal is also called Justice. It is: the Specific Force of the Social Organism; the set of the implicitnorms (Natural Law) that are naturally created by the Society and its members. Those norms are innate and necessary. The Social Organism, indeed, cannot exist without them.

So, Ardigò created an empirical theory that was able to sketch out a framework for understanding the two dimensions of the Legal System: the implicit dimension (Social Ideal); and, the explicit dimension (Positive Law). But, Ardigò gave merely a sketch. He was not able to find and to indicate those innate and inborn mechanisms.

Epis’ Social Prototype ends “what” Ardigò started. Epis’ Social Prototype applies the framework of the Social Psychology, Cognitive Psychology and Social Cognition, to Ardigò’s Social Ideal.

Indeed, in all its dimensions, Law is nothing more and nothing less than a particular kind of social norm. So, Law as a Social Prototype is a very empirical and positive theory able to explain:

the Nature of Law;

the Legal Interpretation;

the relationship and dynamics between the implicit and explicit Legal Dimensions;

the innate psychosocial mechanisms that rule the Legal System;

the whole Legal Domain / Realm in its every levels and aspects.

Law as a Social Prototype is also able to explain the relationship among Morality, Justice and Law. All of them are sub-sets of the main set of the social norms.

Whereas several scholars have linked the moral norms to the legal norms, none of them was able to explain their relationship. They refused to proceed with an interdisciplinary approach. They refused to apply the Social Psychology, Cognitive Psychology and Social Cognition, to their disciplines. So, their theories are weak, … very weak.

Simmonds’ Moral Archetype is an example of this in Jurisprudence. Wikstrom’sSituational Action Theory of Crime Causation is another example of this in Criminology. Indeed, Epis has always advised Wikstrom to improve his theory and studies, using the Social Psychology, Cognitive Psychology and Social Cognition, since 2006. For instance, you can give a look to Epis’ writing: Morality and Crime.

Finally, Law as Social Prototype resolves several legal and philosophical problems such as: the violation of the Law of Hume; the conflict between Natural Law and Positive Law.

Epis’ Prototype and Simmonds’Archetype: the Final Conflict

Simmonds’ Moral Archetype and Epis’ Social Prototype represent the final opposite views that are possible to have about the Nature ofLaw.

They evolve and synthesis all the previous Legal Thought. Simmonds re-elaborated the antique theological and metaphysical perspectives into a modern lay one. Epis re-elaborated the empirical and positive legal theories (which have been developed inside the Legal and Philosophical Thought) into an Integrated and Interdisciplinary Theory. Exempli gratia, Epis enriched and advanced the Ardigò’s Legal Thought with the framework of the Social Psychology, Cognitive Psychology and Social Cognition. At the end, Epis’Legal Theory is able to:

understand the Legal Phenomenum in its Whole Unity;

illustrate the different layers, strata and levels, which constitute the Legal Reality;

describe “how” those levels work and interact together.

In other words, Epis’ theory is a Model, which is able to consider all the different factors and variables of the function: f (Law). Of course, the Model has some limits!! It considers only the factors that belong to the Social and Psychological Sciences. In other words, it cannot tell you “how” the fly of a butterfly in Amazon Forest can affect a legal proceeding in Italy. But, actually, … it can … in somehow.

According to the Chaos’ Theory, the movement of atoms, which has been caused by a Brazilian butterfly, can influence the outcome of a rain and/or a storm in Italy. For instance, at least, it can make some drops of rain and/or hail fall more somewhere instead of somewhere else. A little difference of few millimetres and/or centimetres can cause an unpredicted slip to a Lawyer, who is going to notify a Legal Act. Well, if the Lawyer has waited for the last legal day (as most of the time, they do), this little unpredicted bother (… which was caused by an innocent Brazilian butterfly…) is a sufficientfactor[5] that, alone, is able to affect deeply the entire legal proceeding[6].

Exempli gratia, there is no time for notifying the summons before the end of the legal term. This will cause: the invalidity of the notification of the summons; and, the loss of the rights.

This is “why”, I strongly advice Lawyers (… and more generally any reasonable person …) to not wait for the last moment. Fate is a capriciousChild, with an extraordinary sense of humour. So, you cannot ever know when He decides to play a joke on you.

According to Nietzsche, the Simmonds’ archetype is an idol as: it comes from metaphysics; and, it demands faith.

On the contrary, the Epis’ Social Prototype is not an idol. It does not demand faith. It is a descriptive theory that is able to indicate those clear psychosocial mechanisms that rule entirely the Law’s Realm.

Law and Responsibility

Law itself is neutral. Legal Systems themselves are neutral.

Law is not: eithermoral oramoral; eithergoodorbad.

As Bernard Show said: “everything has its abuse as well its use”.

Law’s moral qualification depends mainly on “how” people use Law.

Indeed, every Legal System can be misused and abused. For instance, different weights and measures can be applied fromcasetocase. Although the norms, rights and liberties, are formally the same for every person (Paper Rights), they can be applied substantially in a very different way fromperson toperson (Real Rights). Exempli gratia, the norms and facts can be interpreted in different ways[7]. Moreover, Economical and Psychological factors can deny people to access their Rights and Liberties. Different economic conditions make people have different degrees in the access to their Rights and Liberties. Social Pressure, Groupthink, Propaganda, Authority’s Compliance, Psychopathological Constructs and Standard Deviations do not allow any free determination. If there is not any real free determination, noresponsibility exists at all. Responsibility asks for a real and substantial individual freedom. So, no responsibility can exist in a flock of sheep. People, at the end, discover themselves to be nothing more than slaves “in chains”, who pay for responsibilities of other persons.

So …, the question is: who is the responsible one for the actions that are done by the flock of sheep?

Well…, the answer is obvious. The shepherd, who leads the flock, is responsible with all his guard dogs[8].

Responsibility and Democracy cannot exist in a flock of sheep. They need a different kind of social group. The flock of sheep must to be transmuted in a group of Free Individuals. This will be possible if, andonly if, the Human Being transmutes himself frommanto superman.

Epis’ Legal Theory: Law as Social Prototype. A new Legal Theory able to overcome: both, the Law of Hume; and, the conflict between Natural Law and Positive Law.

Law as a Social Prototype is a Legal Theory able to overcome: both, the Law of Hume; and, the conflict betweenNatural Lawand Positive Law.

Law as a Social Prototypeovercomes the Law of Hume as it belongs only to the Descriptive Realm. This theory clarifies: the Nature of Law; and, “how” the Legal Domain works in all its different aspects and levels. In other words, it tells us everything about “triangles” (a là Simmonds) without judging among “triangles”.

Law as a Social Prototypeovercomes the conflict betweenNatural LawandPositive Law. It explains clearly the relationship and dynamic forces between these two Legal Dimensions of a Legal System: the implicit dimension (Social Ideal / Natural Law); and, the explicit dimension (Positive Law). It evolves the Ardigò’s framework with the inborn psychosocial mechanisms, which govern those intrinsic natural processes. Without them, Law and Society cannot exist.

As both the implicitnormsand the explicit norms are social norms, it is possible to understand clearly the underlying forces behind their endless recursive interaction.

But, … wait a moment, I have already heard Simmonds’ legal theory with a better formulation!! Simmonds “thieves” the Italian Ardigò of his ideas!!

Actually, Simmonds regressed and retreated the empirical ideas of Ardigò from a Positive Stageto a Metaphysical Stage. Moreover, he “transmuted” the Ardigò’s theoryfrom a good descriptive theoryto a huge philosophical nonsense: something that was tremendously in violation of the Law of Hume.

Simmonds took a lot from Ardigò; it is self-evident. Ardigò was one of first philosopher, who clearly described the Legal Domain and Dynamics like a recursive endless interactionbetween an implicit dimension (Social Ideal / Justice) and an explicit dimension (Positive Law)[9].

Simmonds has simply translated the Ardigò’s theory in English. Instead of using the Italian terms, Social Ideal and Justice, he used Moral Ideal and Moral Archetype.

But, the structure, the dynamics and the connexions between the implicit and explicitDomains, are those that Ardigò used.

There is only one difference. Whereas Ardigò evolved the previous Thoughtfrom a Metaphysical Stageto a Positive Stage, Simmonds regressed it from a Positive Stage to a Metaphysical Stage!!

On the contrary, Epis wanted to advance the Ardigò’s Positive Thought. Actually, he did it as it was explained supra (above).

Justice and Morality

The philosophy of Nietzsche criticizes any attempt to found the Rule of the Law “outside the compass of the earth”. But, Nietzsche is not amoral. Nietzsche does not renounce values. On the contrary, Nietzsche advanced a Positive Idea of Morality. The Positivism of Nietzsche was an Individual Positivism. As I explained supra (above), he overturned the perspective.

So, Nietzsche’s Morality and Ardigò’s Justice can be integrated.

Whereas Morality comes from the Living Experience of each Individual, Justice comes from the Living Experience of each Social Organism (Society).

In other words, something is eitherjustorunjust in terms of Social Life and Existence; something is eithergoodorbad in terms of Individual Life and Existence. Both of them are the best values’ adaptations, which both an Individualand a Social Organism can do, living in those particular historical environments, they experienced.

So, the SocialDimension and the Individual Dimension coexist in harmony.

BetweenJusticeandMorality, the same dialogical recursive interaction, which exists between the implicit and explicit Legal Domains, happens. Justice is the outcome of the Social Dialectic among the different Individual Moralities. But, Justice leads the Social Organism, leaving as freer as it is possible the Individuals.

When Morality moves fromSocietytoIndividuals, Morality and Justice (Social Ideal) overlap. This is not good. It means that all the Individual Dimensions are uniformed and homologated to the Social One. As a result, Justice cannot be the outcome of the Social Dialectic among the different moralities and values of the Individuals. As Individuals have to conform themselves to the Social Ideal, they cannot have and develop any their own different Real Morality and Values. In fact, a homologated individual is nothing more than a lemming and/or a sheep of the flock. Homologation becomes part of his/her habitus, forma mentis. As the Social Ideal does not come from the Social Dialectic among the ununiformed individual moralities and values, the Social Ideal comes from somewhere else.

So the question is: Where does Social Ideal come from?

If it does not come from the Social Dialectic among the differentmoralities of the Individuals that are at the bottom of the Social Pyramid, then it can only come from the top of the Social Pyramid. It means that the Social Ideal is a creation of the Power. It is an arbitrary construct that has been created by Power to advantage its own interests. As Power does not want to reveal the Real Nature of the Social Ideal to its servants, Power presents its SocialIdeal like an Idol. But, Social Norms (it does not matter if they are: Law; Morality; Values; etc…) do not come from any Metaphysical Realm. Social Norms are the most concrete and empirical thing that can exist. As I have widely explained and demonstrated, Social Norms come from the Social Conflict and Social Dynamic Forces that govern and underlie the Social Organism.

So, the Individual Morality cannot be homologated to the Social Ideal. If it happens, Justice is reduced to be “the interest of the most powerful” a là Trasimacus.

This is why Nietzsche does not want believers, but people who trust themselves.

“… Verily, I advise you: depart from me, and guard yourselves against Zarathustra! … Ye say, ye believe in Zarathustra? But of what account is Zarathustra! Ye are my believers: but what account are all believers! Ye had not yet sought yourselves: then did ye find me. So do all believers; therefore all believers is of so little account. Now do I bid you lose me and find yourself; and only when ye have all denied me, will I return unto you.” (Thus Spake Zarathustra, I, XXII).

On the contrary, if each individual is free to create his own Morality, thenJustice is the outcome of the Social Dialectic among all these different views. So, Justice comes from the bottom of the Pyramid, instead of the top. In this case, a RealDemocracy can exist.

Only Individuals, who are really free and self-determined, are equal forces that are able to equilibrate and to balance the forces of the other individuals, who are members of that Social Organism. So, each Individual can be an Independent Power that is able to limit the Power of the other persons. This equilibrium of forces is the best insurance for the Democracy.

Moreover, Individuals can only live and testify their own values and truths. The only things, they can know and understand, are their unique livingexperience. Each time they acts, attests and say, something that come from outside their own individual experience, they make themselves be ridiculous. Indeed, they do something without having any idea of what they are doing. They are just marionettes in the hands of someone else, who uses them like stupid pawn. This is as: “Ultimately, no one can extract from things, books included, more than he already knows. What one has no access to through experience one has no ear for” (Ecce Homo, Why I write good book, I).

Each person is the Best Adaptation to his/her particular kind of Historical Experience.

Each person brings to the Social Dialectic his/her particular Experience, Morality, Truth.

This is essential for the survival of the Social Organism. The ability of the Society to adapt itself to the new circumstances depends entirely on the ability of its individual members to adapt themselves to the new circumstances. If they are (or have to be) uniformed to an Ideal, then they cannot adapt themselves to the new circumstances (as they come). As a result, Society will be unable to adapt itself to the new situations. So, the Social Organism will be dying.

Homologation is Death: Social and Individual Death.

Who preaches for homologation is a “priest” of death. Nowadays, psychologists are them. They preach for: homologation; standard deviations and their constructs. The latters are, at the end, nothing more and nothing less than moral ideals (that are expressed with a misleading form). They are instruments that are used to control people. They are instrument that are used to homologate people to the Power’s Will. But, they lead to one of the most dangerous outcome, as I explained supra (above).

At the end, Nietzsche recognizes the importance of the Rule of the Law inside the actual level of Conciseness of the Humanity. But, the Rule of the Law does not come from Metaphysics. The Rule of the Law comes from: the Individual and SocialEmpirical Live; and, the Rational and Logical Thinking that is made on these Experiences. Nietzsche would have agreed with Ardigò.

Rule of Law like Supremacy of Law above Power

Rule of Law could be understood like the Legal Principle: pacta sunt servanda.

It is a Latin brocard[10] that means: the agreements have to be respected.

Pacta sunt servanda is the first and essential principle for any Legal System and any Social Organism. Any Legal System and any Social Organism to exist needs this principle. Indeed, no Legal System, no Social Organism can exist without it. If the agreements are not respected, then an endless conflict and war will exist among the members of the Social Organism. So, the Social Organism will be weak and divided. Therefore, it will be defeated by another Social Group that it is able to:

both, have more free and ununiformed individuals;

and, have a stronger cohesion among its members.

The former makes the Social Organism be stronger. The absence of homologation (among the Social Members) allows the Social Group: to deal with wider different situations and environments; to adapt itself better to the new circumstances.

The latter makes a good balance between the Individual Freedomand the Social Needs.

If everyone respects the other different views …;

if everyone complies with the principle Pacta sunt servanda …;

… solidarity and empathy are the natural outcome.

As a result, the Society will have cohesion.

But, the principle pacta sunt servanda does not apply with the same intensity to every agreement. Indeed, the Social Contract is the highest Pactum. The Social Contract is both an implicit and an explicit agreement among individuals, who decide to form a Society and/or Nation. It contains the mainvalues (Social Ideal) of the Society. The Social Contract is the hard core of the Ardigò’s Social Ideal.

As the Government receives its powers from the Social Contract[11], Government has only those powers that the Social Contract gives to it. So, Government must comply with: both, the regulations that limit its power and its exercise; and, the values and legal principles that come from the Social Ideal.

In other words, this means that Rule of the Law is the Supremacy of the Law above the Power. Power is submitted to the Social Ideal that comes from the Historical Social Dialectic among free Individuals with different Moralities and Values.

Only in these terms, an impersonal Powera là Ardigò can lead the Society.

On the contrary, we have a Power that betrays the Social Ideal to impose its own tyranny. Therefore, the Social Ideal will be reduced to be a Horse of Troy as I wrote in Rule of Law and English Legal System.

According to Nietzsche, individuals learn from their Living Experiences the Prudence. Prudence advices people to use the Rule of the Law as a mean.

“Rule of law as a mean. – Law, reposing on compacts between equals continues to exist for so long as the power of those who have concluded these compacts remains equal or similar; prudence created law to put an end to feuding and to useless squandering between forces of similar strength. But just as definitive an end is put to them if one party has become decisively weaker than the other: then subjection enters in and law ceases, but the consequence is the same as that previously attained through the rule of law. For now it is the prudence of the dominant party which advises that strength of the subjected should be economized and not uselessly squandered: and often the subjected find themselves in more favourable circumstances than they did when they were equals. – The rule of law is thus a temporary means advised by prudence, not an end” (Human, All too Human, II, 26).

Accounting to Nietzsche, the Rule of the Law has two origins.

The former is originated inside a Utopian Society where everyone is formally and substantially equal to any other person. In this case, Rule of Law comes from a Social Contract that is done by Equal Forces. Rule of Law is the outcome of the Social Experience that has been done by those equal forces/persons. They have learned that it is useless an endless conflict among them for the reasons I explained supra (above).

The latter is originated inside a society where there is not a substantial equality among its members. Nevertheless, the dominant persons have learned that it is sager to economize their forces than to waste them with useless conflicts.

In both the cases, the Rule of the Law does not come from Metaphysics. Rule of Law comes from the Individual and Social Living Experience. It is a conscious, empirical and rational, choice.

In other words, the Rule of the Law is a mean to avoid the Hobbesian bellum omnium contra omnes (Hobbes, 1909). But, Nietzsche does not advice to create a Leviathana là Hobbes (1909). Nietzsche recommends, on the contrary, overturning the perspective. This leads, as I explained, to Ardigò’s Social Ideal. So, at the end, the Rule of the Law is not compatible with the Simmonds’ Moral Ideal.

The Simmonds’ Moral Ideal is a Horse of Troy for the tyranny of the Leviathan. In fact, Popper (1995) declared Plato an enemy of the Open Society. But, Simmonds did not consider Popper. Maybe, he neglected him: … Popper was not a member of his College!! Maybe, Simmonds did it: … he was also an enemy of the Open Society!!

On the contrary, the Rule of the Law is compatible with the Ardigò’s Social Ideal. The Ardigò’s Social Ideal and Epis’ Social Prototype are the mean for the creation of a real Democracy. They are friend of an Open Society!!

[1] According to Euclid, a triangle is a two dimensional geometrical form with: both, three angles, whose sum (α + β + γ) is equal to 180°; and, three sides, which are composed by a straight line segment, whose the length of one of them is never: both, the same; and, longer; … the sum of the others two.

[2] Simmonds (2005b) repeated this concept: “Actual instances of triangles constitute triangles in virtue of the degree to which they approximate to the ideal “triangle” of mathematical definition. So the triangles that one comes across do not constitute triangles by fully satisfying a set of criteria, but by approximating to an ideal archetype. Indeed, not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal”.

[4] Some of them are equilateral triangles; some of them are isosceles triangles; some of them are scalene triangles; some of them are right triangles; some of them are obtuse triangles; some of them are acute triangles.

[6] Actually, this example is taken by real cases. It happened that lawyers, who waited for the last useful day for notifying a summons, slipped and broke one of their legs. So, their clients lost all their rights.

[7] So, even if the Paper Rights tells that an identical Legal System exists for everyone, the Reality is different. The Legal System changes from person to person.

[8] Nowadays, we live in a very strange time. The responsible one is always the poorest sheep. The shepherd is never responsible with his guard dogs!!

[9] Ardigò was one Italian scholar. He belongs to the Italian Positivism.

[10]Brocards are Legal Principles that have been created during the Medieval Age. They have been taken by the Roman Law (which was considered an expression of Natural Law). The name “brocard” came from the name of the bishop of Worms, Burchard, who died in 1025. The bishop Burchard wrote 20 volumes: Regulae Ecclesisticae. These books are a collection of maxims and sayings. Some of those Legal Principles were collected in those tomes.

Epistemology and Morality versus Politics: from the creation of the Superman to the realization of Utopia

I agree with Thomas Mann (1948). Nietzsche is “remote from politics”[1].

Nevertheless, the demand to investigate the “political philosophy” of Nietzsche springs out from the different attempts (which have been done from time to time) to use his “innocently spiritual” Thought (Thomas Mann, 1948) to support anti-democratic Regime.

Although Schutte (1984) and Detwiler (1990) argue that the Nietzsche’s Thought can justify “highly authoritarian systems of government”, Nietzsche is against any anti-democratic Regime. This is clear, as I wrote supra (above). Nietzsche defends and supports the Individual Freedom. His philosophy is ontological incompatible with any totalitarian Regime. Individual Freedom and authoritarian Regimes cannot co-exist together.

Nietzsche’s Thought was corrupted by Elisabeth Nietzsche Foster (his sister). She made Nietzsche’s Thought be compatible with the Germanpolitical ideology of Nazism (Montinari, 1975; Wicks, 2004)[3].

But, Nietzsche’s Philosophy was clearly anti-Nazism.

The anti-Nazism of Nietzsche is self-evident from:

his anti-racism;

his idea that “the concept of “pure blood” is the opposite of a harmless concept”;

his anti-anti-Semitism (Duffy M. F. and Mittelman W., 1988);

the idea of man like a free thinker;

his ideas about idols;

etc… .

On the contrary, Hunt (1991) argues that the Nietzsche’s Thought can be interpreted in any possible way, due its ambiguity. So, Nietzsche can appear: anarchist; totalitarian; liberal; etc…; … as Nietzsche expressed himself like a Sphinx (Blondel, 1991). But, Nietzsche does “not hold any of the standard political ideologies” (Hunt, 1991). So, it is meaningless an account such as that one of Ansell-Pearson (1994). The latter attempted: before, proving that “Nietzsche is liberal individualist”; then, explaining “on which he departs from liberalism”!!

This sketch indicates how much Nietzsche’s work was strongly misunderstood.

Paradoxically, Nietzsche predicted this outcome.

“But it would be a complete contradiction of myself if expected ears and hands for my truth already today: that I am not heard today, that no one today knows how to take from me, is not only comprehensible; it even seems to be right” (Ecce Homo, Why I write good book, I).

For these reasons, I agree with Warren (1985) when he says: “… that the Nietzsche’ s thought has entered the cannon of political philosophy in an unsatisfactory manner, and that the relation of Nietzsche and political philosophy needs to be reconceived”. Nevertheless, I do not agree with Warren (1985) on the “strategy for doing” this re-evaluation. Instead of starting from the centrality of the philosophy of power and human agency, I suggest to follow the exegetic criteria, which Nietzsche gave us in Ecce Homo: “Listen to me! For I am thus and thus. For not, above all, confound me with what I am not!!” (Ecce Homo, Prologue).

The mistake to use the concept of Will to Power comes from a “literal application” of this expression without understanding what it means.

Will to Power does not refer to individuals. It refers to the World itself.

As individuals are parts of the World, they participate to Will to Power.

“This world is the will to power — and nothing besides! And you yourselves are also this will to power — and nothing besides! (Nietzsche, Will to Power, 1067).

Will to power is the Dynamical Force that makes World / Existence be. It looks like the concept of Spirit that is used inside the Hermeneutic Philosophy (Gadamer, Heidegger, Betti, etc…). Indeed, according to Davey (1991): “… there is a substantial hermeneutic foundation to his thinking which has, astoundingly, been neglected”.

The present writer affirms that the political thought of Nietzsche should be extracted by his moral and epistemological philosophy. The political philosophy of Nietzsche is an indirect consequence of his moral and epistemological ideas.

The difficulty to understand Nietzsche comes from the ambiguity of his discourse. His aphorisms look like Buddhist Zen Koans. Nietzsche used ambiguity as, at the end, “no one can extract from things, books included, more than he already knows. What one has no access to through experience one has no ear for” (Ecce Homo, Why I write good book, I). So, long explanations are useless!!

“Every deep thinker is more afraid of being understood than of being misunderstood. The latter perhaps wounds his vanity; but the former wounds his heart, his sympathy, which always says: “Ah, why would you also have as hard a time of it as I have?”” (Beyond the Good and Evil, 290).

The political idea of Nietzsche is to create a Utopian Society that is composed by free Individuals. As Individuals must be the opposite of lemmings, the Utopian Society has to be the opposite of a flock of sheep.

Nietzsche expressed his anti-authoritarian view, exempli gratia, in On the New Idol (Nietzsche, Thus Spake Zarathustra, I). The State is described to be an Idol that imposes its Moral Ideal a là Simmonds onto its servants. So, between the Power of the State (Leviathan) and the Simmonds’ Moral Ideal (the Cultural Paradigm that is imposed by the State) there is a strong bond. This is clear from the Nietzsche’s works, even if his Cultural Aspects and Implications have usually been underestimated (Blondel, 1991).

Although some authors have attempted to restrict the interpretation of On the New Idol to some particular types of forms of Government (Sokel, 1983; Strong, 1976), these interpretations “have nothing to do with the text of On a New Idol” (Hunt, 1991)[4].

On the New Idol refers to every State that has not transmuted itself from the flock of Sheepto the Utopian Society. Indeed, sheep/lemmings have always homologated themselves to something that was given to them. On the contrary, a group of free individuals is made by free spirits. This is clear from the literature that has influenced Nietzsche’s work. Exempli gratia, Holderlin (1822; 1994) was one of his preferred writers (Blondel, 1991)[5].

Nietzsche does not want a society of imitators (lemmings).

“Imitators. – A: “What? You want no imitators?” B: “I do not want people to imitate me; I want everyone to set his own example, which is what I do”. A: “Thus –?” (Gay Science, 255)

Nietzsche does not want believers. Believers are servants of idols.

All the conflicts and wickedest things have been the consequence of believers’ determinations. They want to impose their own Moral Ideal (a là Simmonds) onto any other one. The Christian Church gave an example of this with its Holy Inquisition. To save the soul of people from the fire of the Inferno and Satan, Inquisitors created the Hell on the Earth. Like realdevils, they enjoyed: to torture and to burn people; to commit any atrocity. They were servants of Satan; they were not ministers of God at all. They betrayed God. They killed Him and His Teaching!!

Nowadays, this is done with the New Profane Inquisition. Psychopathology is used and misused to reload the Hell on the Earth (Epis L., 2011/2015). Its constructs, standard deviations and demand of Homologation, are the new Idols “… in the name of …” new and old forms of abuse, torture and violence, can be done.

The only way to exist from this foolishness is to create Utopia.

The only way to create Utopia is to transmute the Human Beingfrommantosuperman.

This is possible only proceeding with the three passages described by Nietzsche: Camel; Lion; Child. Nietzsche’s philosophy has several Alchemical Elements. Indeed, these three passages are a new metaphor for the threeAlchemical Stages: Nigredo (the Black Stage Alchemicae Operae); Albedo (the White Stage Alchemicae Operae); Rubedo (the Red Stage Alchemicae Operae). But, I do not know about These Enigmatic Things! So, I cannot tell you about Them. Yet, you may read other writers such as: Zosimus Alchemista (Zosimos of Pannopolis); Maria Prophetissima (Mary the Prophetess; Mary the Jewess); Stephanus Alexandrinus (Stephanos of Alexandria; Stephen of Alexandria); Pseudo-Democritus; Gabir Ibn Hayyan; Senior Zadith; Paolo di Taranto; Basilius Valentinus (Johann Tholde); …; Julius Evola (1931); … and/or someone else, who knows about Them.

The superman is what I descried in the first chapter. So, I will not long more on this topic. Yet, I want to tell something about the view of Thiele.

I disagree with the “heroic individualism” presented by Thiele (1990).

“The Hero has the fate of Tantalus, whose reach is insufficient and whose efforts unending. For the fruit of his struggle is unattainable: he is a mortal who seeks immortality, a man who desires to be a god. But as he reaches for what he cannot grasp, he also grows in power, and therefore welcomes the temptation to overstep his limits. Unaware or contemptuous of the boundaries of human life, the hero is forever in state of transgression. He is hubristic, and he both suffers and glories in his struggles to be more than he is fated to be”.

Thiele (1990) has completely misinterpreted the concept of hero of Nietzsche. On the contrary, Thiele (1990) described the ideal of the romantic hero, exempli gratia, that one, which was used by Byron (1841) in his Childe Harold’s pilgrimage.

The superman is a different kind of hero.

He:

overcomes his old nature of follower;

transcends duality and the antinomy betweenegoisticandun-egoistic[6], reaching the Unity[7];

goes “beyond the Good and Evil” to obtain the condition describe by Alexander Pope in An Essay an Man: “Self-love and Social are the same”.

Nietzsche does not desire to be god. Nietzsche does not want to create a new idol. He wants to be a Child[8] (Thus Spake Zarathustra, I, I) as I explained supra (above).

“…“Dead are all the gods: now do we desire the Superman to live” – let this be our final will at the great noontide!” (Thus Spake Zarathustra, XX, III).

The Child is a creator of his own values. The Child has awareness. The Child reaches the Unity that has been described by Alexander Pope with his masterpiece: An Essay on Man.

“Nothing is foreign: Parts relate to whole:

One all-extending all-preserving Soul;

Connects each being, greatest with the least;

Made Beasts in aid of Man, and Man of Beast;

All serv’d, all serving! Nothing stands alone;

The chain holds on, and where it ends, unknown”.

Alexander Pope, An Essay on Man.

Nietzsche expressed this interdipende (exempli gratia) with these words: “Thou great star! What would be thy happiness if thou hadst not those for whom thou shiniest!” (Thus Spake Zarathustra, Zarathustra’s Prologue).

The aim of superman is: to find himself … “…find yourself…” (Thus Spake Zarathustra); to be free from any others … “… become what you are” (Thus Spake Zarathustra). It is not to dominate the other persons, but to allow them to be also free.

The aim of superman is to be genuine: “Are you genuine? Or just a play-actor? A representative? Or the actual thing represented? – Ultimately you are even just an imitation play-actor …” (Twilight of the Idols, Maxims and Barbs, XXXVIII).

The aim of superman is to go beyond the duality good and evil: “Good and evil are the prejudice of God” (Gay Science, 259).

For all these reasons, I disagree with Thiele (1990).

“To say it again, little of “ill will” can be shown in my life; neither would I be able to speak of barely a single case of “literally ill will”. On the other hand all too much of pure folly!” (Ecce Homo, Why I write good books, I).

This pure folly is: the pure folly of creating a better human being; the pure folly to create a Utopian Society.

A Society where the Human Being has transmuted: “All … passions in … virtues, and all … devils (in) angels” (Thus Spake Zarathustra, I, V). A Society where “the noble man also helps the unfortunate, but not – scarcely – out of pity, but rather than from an impulse generated by superabundance of power” (Beyond Good and Evil, 260).

A New Hope: from a flock of sheep to a “group” of Free Individuals

The individuals, who are able to pass through the three stages (Camel; Lion; Child), arrive to transmute themselves from men to super-men.

This means two things. On one hand, they transmute themselves. On the other hand, they transmute the Society whose they are members. As they are not any more lemmings, Society is not any more a flock of sheep.Society transmutes itself from a flock of sheep to a group of freeIndividuals, who are able to co-exist and to collaborate in theirown (very strong) differences. So, a true Democracy will begin.

As I wrote supra (above), no democracy (at all) can exist among flocks of sheep. Since they are enslaved by homologation, only Tyranny exists.

It does not matter the form and/or the name that has been given to this tyranny. It does not matter the reason “… in the name of …” Homologation is demanded.

Flocks of sheep are always dominated by a Totalitarian Regime. They ask for homologation. They ask for idols. They are not able to live in a different way.

On the contrary, Utopia is made by Free Individuals.

So, you have to choose: do you want to be a lemming/sheep or a Free Individual?

Do you want to stay in a flock of sheep or to create Utopia?

Only you, by yourself, can decide. Only you, by yourself, can free yourself. No God, No Bodhisattwa, No other one else, can help you in this.

[2] “ Inside a Democracy … a “Nietzsche’s dimension” cannot miss. It is the dimension of the “freedom of Spirit” that comes from the critical, rational and liberating, power of his thought, which re-put everything under re-examination without getting tired”.

[3] Elisabeth Nietzsche Foster and her husband Bernhard Foster were both Nazis. They lived in Paraguay. When, they came in Germany to take care Friedrich Nietzsche, Elisabeth used the philosophy of her brother to elevate her position in the Nazis Society. In Paraguay, Elisabeth and her husband worked actively “to establish an Arian, anti-Semitic German Colony called” Nueva Germania (Wicks R. 2004). This is how the Nietzsche’s Thought was made compatible with the nationalism of Hitler and Mussolini (Wicks R. 2004).

[4] Sokel (1983) restricts the application of on the New Idol only to “ossified bureaucratised State”; whereas Strong (1976), only to “nationalistic States”.

[5] Holderlin (1822; 1994) in the Hyperion wrote: “… The person who wants the State to be a school for morality has no idea how much he is sinning. None the less, wanting the State to be his heaven, man has created a hell. The State is a rough walnut shell covering life, nothing more. It is the wall of the garden in which men grow flowers and fruits. But what use is the garden wall if the soil is dry?”.

These ideas are present in the On the New Idol of Nietzsche.

[6] “The propositions over which everybody is in fundamental agreement – not to speak of everybody’s philosophers, the moralists and other hollow-heads and cabbage-heads – appear with me as naïve blunders: for example that belief that “un-egoistic” and “egoistic” are antithesis, while the ego itself is merely a “higher swindle”, an “ideal”. There are neither egoistic nor un-egoistic actions: both concepts are psychologically nonsense!” (Ecce Homo, Why I write good books, V).

“What makes one heroic? – To approach at the same time one’s highest suffering and one’s highest hope” (The Gay Science, 268).

[7] The concept of unity is so clear, so evident, obvious, in his writing: “An “idea” – the antithesis Dionysian and Apollonian – translated into metaphysic; history itself as the evolution of this “idea”; in tragedy this antithesis elevate to unity; from this perspective things which had never before caught sight of one another suddenly confronted with one another, illuminated by one another and comprehended…” (Ecce Homo, The birth of Tragedy, I).

[8] “Three metamorphoses of the spirit have I designated to you: how the spirit become a camel, the camel a lion, and the lion a child”

…

“But tell me, my brethren, what the child can do, which even the lion could not do? Why hath the preying lion still to become a child?

Innocence is the child, and forgetfulness, a new beginning, a game, a self-rolling wheel, a first movement, a holy Yea.

Aye, for the game of creating, my brethen, there is needed a holy Yea unto life: its own will, willeth now the spirit; his own world winneth the world’ outcast” …

Rule of Law and English Legal Systemhas been published like book in PDF with Index, Bibliography, etc … . I strongly recommend reading it: both, in PDF; and, in its whole unity. You will be able to find it in the Blog’s Page: Law & Criminology(Diritto & Criminologia).

ABSTRACT

Although few changes and additions have been done, this writing reports studies made in 2005/2006.

Even though the writer believes that:

1) a corpus of legal values should be written inside each Constitution;

2) and Judges, Lawyers and People, have the duty to defend those values against the tendency of Power to go beyond them; …

… the study affirms that the principium of Rule of Law (and/or Supremacy of Law) does not include a corpus of legal principles (and/or values) inside itself, as somebody affirmed.

The principium of Supremacy of Law means “only”: the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution, when Power believed to be above the Law. It happened, exempli gratia, in France during the AncientRegime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above the Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Bureaucrats, Banks and Financial Powers, are all under the Law. In other words, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued: the Euro-groupis above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, the Euro-group is not above the Law. Actually, all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981). Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, people have forgotten the real meaning of Supremacy of Law. Power started again to act above the Lawa làAncient Regime!!

INTRODUCTION

Rule of Law’s True Meaning

The principle of Rule of Law is also called Supremacy of the Law. Rule of Law is a principle of Formal Validity. It states that Law is above the Power. In other words, it is the basic principle of any modern Legal System, after the French Ancient Regime!

The Supremacy of Law affirms that Kings (Presidents; Governments; Constitutional Bodies; Judges; Courts; Authorities; Committees; Groups; Bureaucrats; Financial Powers; Banks; etc…) are under the Law. Their actions and decisions are legitimateonly, and only if: both, the Law gives them that kind of power; and, they use that power following the right procedures.

Otherwise, Power is unlawful, illicit and illegitimate.

Their commands should not be in force.

In this latter case, people are NOT bind by Power’s decisions. People have the RIGHT to resist and to fight against those illegalities, illegitimacies and unlawfulness.

Unfortunately, Power does NOT like to be bound. As a result, the principium of Supremacy of Law was reduced to be a simulacre a là Bauderillard (1981).

First of all, Supremacy of Law was called with a “less evocative” name: Rule of Law.

Then, Rule of Law was defined with new pleasant and agreeable principles. At the question: “what is the Rule of Law?”, lawyers started to give any possible answer. So, the clear, basic and simple, principium of Supremacy of Law became a void and nebulous concept.

At the end, People and lawyers started to forget its real meaning.

Meanwhile, Power started again to act above the Law.

For instance, the writer will give some examples that happened at the University of Cambridge. They are very useful to understand what it is happening nowadays. What people learn in the Universities, people do in the World!! Although the writer decided to speak about it with a satirical and ironical style, the facts are true.

Rule of Law like Simulacre

As we told supra[1], the principle of Rule of Law is the principium of Supremacy of Law above the Power. This is its very Nature. This is its DEEP REALITY.

However, images, in the flow of the time, tend to lose their meanings. Step by step, they become void concepts that: either, mask their deep realities; or, lose any relation with them.

According to Bauderillard J. (1981), they become Simulacres. Once they are Simulacres, they are void concepts that can be filled with any arbitrary meaning, which Power[2] wants. In this way, Justice is reduced to be nothing more than “the interest of the most Powerful one” a là Trasimacus.

They are a “mobile army of metaphors” ready to prostituting itself to any pro tempore Power. As History and Social Sciences teach, the Winners and the Establishment (Lyotard, 1983) decide what it is true and false. This is as Power and Knowledge are the “two faces of the same coin” (Foucault). Changes into Power’s relations become changes into Paradigm’s beliefs. Changes into Paradigm’s beliefs become changes into Power’s relations.

Thus, we should keep in mind this basic truth, when we study any Social Sciences’constructs. Actually, it does not matter if they are about: Law; Psychology; Economy; Finance; etc… .

Law and Sensemaking

As the principium of Supremacy of Law was reduced to be a simulacre, Power can use it like a Horse of Troy to put in and put out from the Legal System whatever it wants.

This makes Law be applied in a very discriminative way. Law will have different meanings for different people. For the majority of people, Law will be an instrument of “slavery” in Power’s hands. For a small elitist group, Law will be always a Declaration of Rights in defense of their own liberties and interests.

English Legal History, behind what propaganda says, it is not an exception. Whereas at Bentham’s time, the common law was used to defend the privilege of aristocracy above common people; nowadays, Law is used to defends the interests of financial powers above Peoples and Nations.

Thus, the writings of Bentham should be still considered a current issue.

According to the Bentham, English tradition is committed to “save the appearance” with a lot of rites and false beliefs. Lawyers’ writings, instead of reviling those trickeries, mask them[3].

Whereas English Lawyers / Judges claim to apply simply “neutral” Law (Universal Principles; Acts of the Parliament; etc…), they make always arbitrary (discretional and political) choices. They use their power to defend the privilege of the Establishment against common people.

The American Realism clarified that Judges do NOT apply neutrally the Law. Judges create and change the Law in each case. They do (always) political choices. Also Perelman demonstrated this. He gave some good historical examples of how, the same Law got very different interpretations and applications. The latters followed the pro tempore political ideas. This is possible for different reasons. But, an army of Troy’s Horses makes it far much easier.

The allegories of the Classical Literature are still very useful for understanding the present time. A Horse of Troy does not need to be necessary physical!! It could be everything, even a theoretical concept.

Thanks to them, the Establishment can use Law (as well as: Psychology; Economics; etc…) to lead people: both, to do; and, to believe; … what they want. Weick’s studies about sensemaking and enactment are very useful for understanding these dynamics. They should not be limited for approaching the working contexts inside the Companies.

All in all

There are two wrong views. The first one, nothing can be known (Post-modernism). The second one, everything is true. Both of them reduce Truth and Justice to be whatever Power wants. They allow Power to control people with sensemaking. But, sensemaking has nothing to do with Truth and/or Justice. Sensemaking is just Power’s manifestation.

This is what it is happening inside the Social Sciences (Legal System; Psychological constructs; Finance; etc…).

As Nietzsche wrote: “This world is the will to power — and nothing besides! And you yourselves are also this will to power — and nothing besides!” (Nietzsche, Will to Power).

RULE OF LAW

Rule of Law “is an ambiguous expression” that can have different meanings for different writers (Hood Phillips O. and Jackson P., 1987).

Hence, a clarification of the concept (advised by analytical jurisprudence and philosophy) is indispensable, at the present tense.

In absence, we could just enhance entropy. Everyone will speak about different things, using same words.

At the present time, there is no agreement among lawyers about the nature of Rule of Law. Lawyers, Judges and Academics, defined Rule of Law differently. Moreover, Rule of Law presents different conceptualizations: both, among the legal Traditions and Systems; and, inside the each legalTradition and System (such as: English Common Law; Canadian Legal System[4]; etc…).

For instance, according to American constitutionalism: “the rule of law promises predictability in social life by placing constitutional limits on the kinds of power that governments may legitimately exercise, as well as on the extent of those governmental powers” (Shapiro I., 1994). Otherwise, this cannot be true for Countries such as: Australia. Australian Constitution simply regulates the exercise of the sovereignty. It does not state any legal principle and/or value able to lead and to bind the Power. Hence, Rule of Law is a mere principle of formal validity (like Hart’s rules of recognition) for those Nations with an “amoral constitution”. Everything is valid, if the Power acted under the Law.

American conceptualization of Rule of Law has its foundation in a written constitution. This is ontologically constituted by two corpora (parts). The first corpus gathers the regulations about the exercise of sovereignty (exempli gratia, the relation among the Constitutional Bodies). The second corpus gathers a set of political and legal principles that bind the actions of Sovereignty. This latter was the hard core of the Social Contract. So, if the Sovereignty acts against those values, each Judge can refuse to apply those Acts and/or commands.

Law rules Nationsonly, and only if, each person (it does not matter his/her social strata) can “win” the Sovereignty each time the Sovereignty acts above the Law. But, this must happen in a substantial way. It is not enough that it exists only theoretically speaking.

Rule of Law has also another aim: to prevent any kind of despotism, also that one of the pro tempore Majority above the Minorities. But, this could happen only, and only if, Nations are ruled by constitutional principles (Schwartz B. 1955).

Allan (1993) considered this point inside English Discourse. He recognized that “… the problem lies (in) the difficulty of articulating a coherent doctrine which resists a purely formal conception of legality – according to which even brutal decrees of a dictator, if formally “valid”, meet the requirements of the rule of law – without instead propounding a complete political and social philosophy”. Allan (1993) confirmed that Rule of Law, inside English constitutionalism, looked like a secondary rule of Hart, as: “rule of law is able to distinguish between commands of a legitimate government from those of anyone else”.

Allan (1993) stated that it is “very doubtful whether it is possible to formulate a theory of rule of law of universal validity”.

On the contrary, the present writer affirms that it is possible. It is enough to exit from the Babel Tower. It is enough to go back to the original and real meaning of Rule of Law: Supremacy of Law above the Power.

Nevertheless, Allan (1993) affirmed that Rule of Law is a living part of the English Constitution. It is able: both, to bear some legal moral values and principles; and, to bind the sovereignty of the parliament. But, Allan is hugely wrong. According to English Constitutionalism, Westminster Parliament has no limit (Barendt,1998). In other words, “there is no legal limit to what the “Queen – in – Parliament” can enact in a statute” (Wilson, 1979).

This is historically well proved.

Rule of Law like Universal Principle of any Legal System

The present writer disagrees with Allan. He believes that it is possible to formulate a theory of Rule of Law of Universal Validity. It is enough to remember its original and deep meaning. Rule of Law is the principium of Supremacy of Law. This principium states the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution when Power believed to be above Law. It happened, exempli gratia, in France during the AncientRegime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Judges, Courts, Bureaucrats, Officers, Banks and Financial Powers, are all under the Law. In other word, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued the Euro-groupis above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, it does not mean that it is above the Law!! Actually, it means that all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981). Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, we have arrived to the present time. Lawyers are lost inside nebulous concepts. Power has started again to act a làAncient Regime.

English constitutionalism is used like example for understanding how it has happened.

[3]Exempli gratia, Bentham wrote this about Blackstone’s books (one of his “masters”).

[4]Exempli gratia,Rule of Law has received three different approaches in Canadian Constitutionalism: rule of law like impartial administration of rule; rule of law like procedural fairness; rule of law like substantive justice (Conklin W. E. 1989).